DUTY OF CONFIDENTIALITY

Question 1

DUTY OF CONFIDENTIALITY

Applies…

L must….

Answer 1

L has a duty of confidentiality to C and must not reveal any info’ relating to the representation of a C, regardless of the source, unless some exception applies.

The duty of Confidentiality applies to all information relating to the representaiotn of the C regardless of when or where it was acquired, regardless of whether the C asked for it to be kept in confidence, and regardless of whether revealing it might harm or embarrass the C.

Also applies to info’ of former Cs and info gained during consultations with prospective Cs.

L must take reasonable measures to prevent unauthorized access to, or inadvertent disclosure of, the C’s CI.

Question 2

WHEN CI MAY BE DISCLOSED

Answer 2

ABA: L may generally only disclose a C’s CI if…
C gives INFORMED CONSENT, or disclosure is IMPLIEDLY AUTHORIZED to carry out the rep, or an EXCEPTION to the duty applies.

If exception applies, L may only disclose only to the extent necessary to meet the exception.

Question 3

EXCEPTIONS TO DUTY OF CONFIDENTIALITY

Answer 3

• DEATH OR BODILY
  HARM
• FINANCIAL LOSS (ABA ONLY)
• ATTORNEY’S DEFENSE
• LEGAL ETHICS ADVICE
• ORGANIZATIONAL CONFLICTS
• COMPLIANCE with Court order or law

Question 4

DEATH OR BODILY HARM EXCEPTION TO DUTY OF CONFIDENTIALITY

Answer 4

ABA: L MAY disclose CI to prevent REASONABLY CERTAIN DEATH OR SUBSTANTIAL BODILY HARM.

CA: Same, but Disclosure must be to prevent a FUTURE CRIMINAL ACT that is likely to result in death/substantial bodily harm.
Before disclosure, L must make a GOOD FAITH effort to persuade C not to commit the criminal act or to prevent the crime (if reasonably under the circumstances).
L must also INFORM the C of the L’s ability or decision to reveal the CI.

Question 5

FINANCIAL LOSS EXCEPTION TO DUTY OF CONFIDENTIALITY

Answer 5

ABA ONLY!

ABA: L may disclose CI to prevent C from committing a CRIME or FRAUD that is reasonably certain to cause SUBSTANTIAL FINANCIAL LOSS to a person, if the C IS USING/HAS USED the L’s SERVICES IN FURTHERANCE of the crime/fraud.

Disclosure also allowed to RECTIFY or MITIGATE the fin’ loss if crime is already complete.

Question 6

ATTORNEY’S DEFENSE EXCEPTION TO DUTY OF CONFIDENTIALITY

Answer 6

BOTH:
L may disclose CI to COLLECT a LEGAL FEE or DEFEND the L from some charge/claim of wrongdoing (like malpractice).

Question 7

LEGAL ETHICS ADVICE
EXCEPTION TO DUTY
OF CONFIDENTIALITY

Answer 7

ABA ONLY!
L may disclose CI to obtain confidential legal ethics advise.

NO CA counterpart.

Question 8

CONFLICTS EXCEPTION TO DUTY OF CONFIDENTIALITY

Answer 8

(ABA ONLY)
L may disclose CI to DETECT or ADDRESS Conflicts of INTEREST resulting from organizational change.

NO CA counterpart.

Question 9

COMPLIANCE EXCEPTION TO DUTY OF CONFIDENTIALITY

Answer 9

L may disclose CI to comply with a COURT ORDER OR OTHER LAW.

ABA: Also, to comply with ethics rule. Another ethics rule may permit or req’ the disclosure (outside reporting orgs, candor to tribunal).

CA: Comply with court order or law. Not available to comply with ethics rule. other ethics rules gen’y do not supersede duty of confidentiality in CA

Question 10

AC Privilege.

Effect?

Duration?

Answer 10

Allows C to refuse to testify and prevent L from testifying in court about Confidential communciations between them or respective agents.

ABA: AC privilege is perpetual, survives C’s death.

CA: AC privilege TERMINATE when the C’s estate is settled and their personal rep’ is discharged.

Question 11

EXCEPTIONS TO AC PRIVILEGE

Answer 11

BOTH: * Client seeks the L’s services to enable or aid anyone to commit a future crime or fraud.
* To a communication relevant to an issue of breach of the duties arising out of the lawyer-client relationship.
* In civil litigation between persons who were formerly the joint clients of the attorney.
* In a variety of situations relating to the competency or intent of a client who has attempted to dispose of property by will or inter vivos transfer.

CA- Additional exception:
When disclosure is necessary to prevent a criminal act that the L reasonably believes is likely to result in a person’s substantial bodily injury or death (same as exception for duty of confidentiality).

Question 12

IMPUTATION OF CONFLICTS

Answer 12

Generally, when one L cannot take on a matter because of a conflict of interest, the other Ls in the firm are also barred from taking on that matter. The conflict is “imputed” from the first L to the other Ls.

EXCEPTIONS to imputed disqualification are:
* When the conflict is PERSONAL to the disqualified L and would not materially limit the representation of the client by the other Ls in the firm.
* When the conflict is based on certain situations involving the disqualified L’s prior representation, employment, etc., and the lawyer is properly SCREENED from the matter and the affected persons are given notice.

Also, Imputation can be waived by the affected client(s).

Question 13

CURRENT-CLIENT CONFLICTS

Answer 13

A conflict with a CURRENT client exists if either:

(1) The representation of one C will be DIRECTLY ADVERSE to another C who the lawyer represents in the same or a separate matter.
- There is a direct adversity conflict even if the L represents the other client in totally unrelated matters.
- Direct adversity also exists when a lawyer must conduct a harmful or embarrassing cross-examination of an existing client in the course of representing another client.

(2) There is a SIGNIFICANT RISK that the representation of the client will be MATERIALLY LIMITED by the L’s own interest or by the lawyer’s responsibilities to another client, a former client, or a third person.

The “significant risk of material limitation” conflict is relevant in various situations, including:
- when a L is representing multiple parties on the same side of a matter and the parties have potentially conflicting interests;
- when a lawyer is taking inconsistent legal positions in two cases and the first case is likely to create a controlling precedent in the second case;
- when the lawyer is dealing with a former client conflict that could affect their rep of the current C; or
- when the L has a conflict based on their own financial or other personal interest.

Question 14

STEPS FOR RESOLVING CURRENT-CLIENT CONFLICT

Answer 14

L may still undertake the represnetation if four conditions are met:
1. L reasonably believes that they can competently and diligently represent the C despite the conflict;
2. Rep is Not prohibited by law;
3. Rep does not involve direct adverse in the same proceeding before a tribunal (L not on both sides of the same litigation)
4. Each affected C gives informed consent, confirmed in writing. (C orally consents, L sends confirmatory memo to C)
* CA requires INFROMED WRITTEN CONSENT (both disclosure and consent must be in writing)

Question 15

WRITTEN DISCLOSURE REQUIREMENT FOR LAWYER’S RELATIONSHIPS

Answer 15

(CALIFORNIA ONLY)
Under the CA rules, certain relationships require WRITTEN DISCLOSURE to C:
* L (or another L in firm) has a legal, business, financial, professional, or personal relationship with, or responsibility to, a PARTY OR WITNESS in the C’s matter.
* L (or another L in firm) is an immediate family member of, or lives with, or intimate personal relationship with, or C of the firm of, another party’s ATTORNEY in the C’s matter.
If signficant risk of material limitation bc of the relationship, usual informed writtenc onsent required.

Question 16

BUSINESS TRANSACTIONS with/ PECUNIARY INTERESTS ADVERSE to C

Answer 16

The L must not enter into a biz transaction with a C, or KNOWINGLY acquire a ownership, security, possessory, or money interest that is adverse to the C, unless:
* F: terms are FAIR to the C,
* D: TERMS and L’ ROLE in tran’s are fully disclosed in writing;
* O: C is advised in writing to seek the advice of Outside counsel before entering arrangement, and is given a reasonable chance to seek OC, and
* C: C gives Informed Written CONSENT, in a WRITING SIGNED by C.

EXCEPTION: Rule does not apply to standard commercial transactions between L and C for products/services that C generally markets to others.

Question 17

MISUSE OF C’s CI

Answer 17

L must NOT use CI to a C’s disadvantage, UNLESS C gives INFORMED CONSENT or some exception to duty of CI applies.

This rule includes former Cs and prospective Cs, unless info has become generally known.

Question 18

SUBSTANTIAL GIFTS from Cs

Answer 18

L must NOT:
* SOLICIT a substantial gift from C to L (or L’s family member), or
* Prepare an INTRUMENT on behalf of C giving a substantial gift to L or L’s family member,

Does NOT apply if C is related to gift recipient.

CA Add’l EXCEPTION: L may prepare instrument giving sub’ gift to L, if C has been advised by an INDEPENDENT LAWYER who has provided a Cert’ of independent review.

Question 19

FINANCIAL ASSISTANCE TO Client

Answer 19

ABA: L may not provide financial assistance to a C in connection with pending/contemplated LITIGATION.
Except for:
* L may advance court costs and expenses, and repayment may be contingent on outcome of the case.
* If C is indigent, L may pay expenses outright.
* If C is indigent, and rep is pro-bono, L may provide MODEST gifts for living expenses. BUT, L may not promise the availability of these gifts, seek or accept reimbursement from C, or advertise/publicize L’s willingness to provide these gifts to prospective Cs. (ABA ONLY).

CA: The prohibition applies to financnial assitance in ALL contexts, not just litigation. Also, Adds:
* L may advance C money for any expenses for indigent C’s incurred in promoting C’s interests.
* L may pay any expenses for indigent C’s incurred in promoting C’s interests.
* L may NOT buy a potential C with a promie to pay the potential C’s debts.
* After L is hired, L may lend C money for ANY PURPOSE if C gives WRITTEN PROMISE to REPAY loan.
* With C’s written consent, L may pay C’s expenses to a third party from funds collected for the C as a result of the rep.

Question 20

AGGREGATE SETTLEMENT AGREEMENTS

Answer 20

L must not participate in the making of an aggregate settlement agreement unless:
* L DISCLOSES to EACH C the existence/nature of all claims or pleas involved and participation of each person in the settlmenet; AND
* each C gives informed written consent to agreement, SIGNED BY CLIENT.

Question 21

COMPENSATION FROM SOMEONE OTHER THAN C

Answer 21

L must NOT accept compensation for the representation of a C from someone other than C, unless:
* NO INTERFERENCE with L’s professional independent judgement or LC relationship.
* C’s CONFIDENTIAL INFO’ relating to the rep remains PROTECTED.
* C gives informed consent.

CA: Require INFORMED WRITTEN CONSENT from C.
BUT, discoure and consent are not required if (1) nondiscloure/comp authorized by court order; or (2) L is rendering legal services on behalf of public agency or nonprofit. Also, in emergencies the L may obtain C’s consent after the fact.

Question 22

SETTLING Existing MALPRACTICE CLAIM

Answer 22

BOTH:
A lawyer must not settle a claim or potential claim for malpractice liability with an unrepresented client or former client without (1) advising that person in writing that independent counsel is desirable, and
(2) giving that person a reasonable chance to consult with independent counsel.

Question 23

PROSPECTIVELY LIMITING LIABILITY FOR MALPRACTICE

Answer 23

ABA: A lawyer must not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement.

CA: The California rule does not permit prospectively limiting liability for malpractice in any circumstance.

Question 24

ACQUIRING LITERARY OR MEDIA RIGHTS CONCERNING CLIENT’S CASE

Answer 24

ABA: A lawyer must not acquire literary or media rights to a story based in substantial part on information relating to the lawyer’s current representation of a client. However, the lawyer may acquire such rights after the client’s legal matter is entirely completed, appeals and all.

CA: Treated as a business transaction.

Question 25

PROPRIETARY INTEREST IN CAUSE OF ACTION

Answer 25

A lawyer must not acquire a
proprietary interest in the
cause of action or subject
matter of litigation the lawyer
is conducting for a client,
except that the lawyer may:
(1) acquire a lien authorized by
law to secure the lawyer’s fee
or expenses, and
(2) contract with a client for a reasonable
contingent fee in a civil case.

CA: A lawyer’s acquisition
of an ownership interest in
the subject of the
representation is treated
as a pecuniary interest
adverse to a client and
must meet the
requirements of that rule.

Question 26

PARTICIPATION IN
FORECLOSURE OR SALE
(CALIFORNIA ONLY)

Answer 26

In connection with a probate, foreclosure, receiver’s, trustee’s, or judicial sale, the California Rules provide that a lawyer must not:
* Directly or indirectly purchase property in an action or proceeding in which such lawyer—or any other lawyer with whom the lawyer is personally or professionally affiliated—is acting as a lawyer for a party or as executor, receiver, trustee, administrator, guardian, or conservator.
* Represent the seller in an action or proceeding in which the purchaser is a spouse or relative of the lawyer or another lawyer in the firm, or an employee of the lawyer or the firm.

However, this rule does not prohibit a lawyer from transactions authorized by and in compliance with the Probate Code. There is no ABA counterpart rule.

Question 27

SEXUAL RELATIONSHIP WITH CLIENT

Answer 27

ABA: A L must not have a sexual relationship with a client unless the sexual relationship pre-dates the lawyer-client relationship.

If the client is an organization, the rule applies to a sexual relationship with a constituent of the organization who supervises the lawyer’s work or consults the lawyer about the organization’s legal matters.

Even if the relationship pre-dates the representation, the lawyer should consider whether the relationship will materially limit the representation and implicate the general conflict of interest rule for current clients.

This type of conflict is not imputed to other Ls in the firm.

CA: Same, but additional exception for when L and C get married/ enter into domestic partnership.